Gujarat High Court
Anilkumar Pitambardas Tamboli vs Lh Of Decd Jethalal Shivlal on 4 November, 2025
NEUTRAL CITATION
C/SA/42243/2022 ORDER DATED: 04/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
F/SECOND APPEAL NO. 42243 of 2022
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of
2022
In F/SECOND APPEAL NO. 42243 of 2022
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of
2023
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 3 of 2022
In F/SECOND APPEAL NO. 42243 of 2022
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 3 of 2022
In F/SECOND APPEAL NO. 42243 of 2022
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ANILKUMAR PITAMBARDAS TAMBOLI & ORS.
Versus
LH OF DECD JETHALAL SHIVLAL & ORS.
==========================================================
Appearance:
MR YUSUFKHAN PATHAN(3799) for the Appellant(s) No.
1,2,3,4,5,6,7,8
MS C.B. PATANI(7198) for the Appellant(s) No. 1,2,3,4,5,6,7,8
DR.ABHISST K THAKER(7010) for the Respondent(s) No.
1.1.1,1.1.2,1.1.3,1.2.1,1.2.2,1.3.3,2.2.3,2.2.4,2.3.1,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/11/2025
ORAL ORDER
ORDER IN CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2023 In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 3 of 2022 In F/SECOND APPEAL NO. 42243 of 2022.
[1] The present application is filed by the original appellants who instituted Second Appeal before this Court challenging the judgment and decree passed by the 14 th (Ad-hoc) Additional Page 1 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined District Judge, Vadodara in Regular Civil Appeal No.45 of 2015, whereby Appellate Court dismissed the aforesaid appeal, thereby, confirmed the judgment and decree passed by the Trial Court, whereby the Trial Court dismissed the suit originally filed by predecessor of appellants-applicants. [2] The present application is filed seeking condonation of delay in bringing the legal heirs of two appellants / applicants and as such, there was delay of around 3757 days in filing such application to bring the legal heirs on record of two appellants i.e. appellant No.1 and appellant No.2.
[3] The facts, which are narrated in present application, would indicate that appellant No.1, namely, Anilkumar Pitambardas Tamboli, died on 23.06.2010, whereas appellant No.2, namely, Piyushbhai Pitambardas Tamboli, died on 28.04.2021. So, it is clear that appellant No.1 died during the pendency of the suit as Trial Court passed decree on 30.03.2015, whereas appellant No.2 died prior to filing of Second Appeal before this Court. [4] The other appellants appear to be close family members/relatives, maybe siblings, must be aware about death of the appellant No.1 and appellant No.2 respectively.
Nonetheless, no steps taken by them to bring legal
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representatives of deceased appellant No.1 & 2 respectively at given point of time.
[5] Furthermore, the applicants herein have conveniently not disclosed the factum of death of respective appellants, either before the Trial Court or Appellate Court, and or before this Court when presented the Second Appeal. As such, decree which was passed by the Trial Court, would be nullity, inasmuch as, passed against the dead person i.e. appellant No.1 herein. It is very surprising that despite knowing the death of appellant No.1 herein, Regular Civil Appeal No.45 of 2015 presented with his name before the Appellate Court concerned, who also dismissed First Appeal, whereby also such decree stand against the appellant No.1 would also be nullity as he already died prior to filing of the First Appeal.
[6] The suppression so far as factum of death of appellant Nos.1 and 2 continued by rest of the appellants / applicants herein when presented Second Appeal before this Court. It was incumbent upon the applicants herein to disclose the true and correct facts when presented the appeal although in delay. It is very deplorable state of affairs on part of the appellants/applicants, who knowing fully well that appellant Page 3 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined Nos.1 and 2 died prior to filing of Second Appeal, despite that such appeal was presented before this Court albeit with delay of around 361 days. Even calculation of such days of delay is not correct one as decree passed by the Appellate Court was dated 10.10.2019, whereas Second Appeal was presented before this Court on 20.12.2022. Be that as it may, at this stage, this Court would not like to further go into such aspects. [7] Nevertheless, fact remains that death of appellant Nos.1 and 2 though well within the knowledge of the applicants herein who for reason best known to them, not disclosed such facts to before Trial Court / Appellate Court / before this Court respectively.
[8] Ordinarily, this Court would not like to go into technicalities as it advances substantial justice to the parties thereby, technical aspect needs to be kept aside. At the same time, the conduct of the parties when approached the Court with unclean hands, needs some deliberation, at least by this Court, otherwise there would not be any sanctity of any judicial proceedings.
[9] The explanation coming forth from the side of the applicants seeking condonation of delay are bereft of any Page 4 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined material particulars; they made a very casual statement and threw every burden upon the shoulders of the lawyer. As such, in these set of facts and circumstances, lawyer could not be blamed as factum of death of one of plaintiff-appellant requires to be disclosed by other plaintiffs-appellants to their lawyer especially when one of plaintiff-appellant died is closed relative. [10] When such would be the peculiar facts of the present case, this Court cannot oblivious and condone such gross inordinate delay on the part of the applicants who wants to bring legal heirs of deceased appellant Nos.1 and 2 respectively on record.
[11] It is settled legal position of law that when there is a negligent act on the part of the applicants in instituting any proceedings before the Court of law and while such a gross inordinate delay not appropriately and properly explained by the applicants, the Court should not exercise its discretion in favour of such applicants. Further, when applicants not disclosed rather suppressed the fact of death of appellant no.1 & 2 before all the Courts respectively, not entitled to get any discretionary relief.
[12] Some of the recent past decisions of the Hon'ble
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Supreme Court on issue of delay condonation needs to be considered by this Court.
[12.1] It is apt to first rely upon the decision of Honourable Supreme Court of India in a case of Rajneesh Kumar & Anr V/S Ved Prakash reported in 2024 (14) SCALE 406, wherein held as under:
"[12] As regards the law of limitation, we may refer to the decision of this Court in Bharat Barrel & Drum MFG Go. v. The Employees State Insurance Corporation, 1971 2 SCC 860, wherein this Court held as under:-
"The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a Court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dermientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep). Therefore, the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims."
(emphasis supplied) [12.2] It is apposite to refer to and rely upon another decision of the Hon'ble Supreme Court of India in the case of K.B. Lal (Krishna Bahadur Lal) v. Gyanendra Pratap & Ors., reported in 2024 (4) Scale 759, wherein, after revisiting the law on the aspect of condonation of delay, the Hon'ble Apex Court held thus:
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NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined "10. There is no gainsaying the fact that the discretionary power of a Court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant (See Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors.
(2021) 18 SCC 384). The discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay (See P.K. Ramachandran v. State of Kerala and Anr., (1997) 7 SCC
556). Thus, it is apparent that the words 'sufficient cause' in Section 5 of the Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to the litigant (See Basawaraj and Anr. v. Special Land Acquisition Officer., (2013) 14 SCC 81). The principles which are to be kept in mind for condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649, and are reproduced as under:
"21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted.
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That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted, or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation."
(emphasis supplied) [12.3] It is also profitable to refer to and rely upon ratio laid down by recent past decision of Honourable Supreme Court of India in a case of Pathapati Subba Reddy (Died) BY L RS & ORS V/S Special Deputy Collector (LA) reported in 2024 INSC 286 : 2024 (4) SCR 241 : 2024 (4) Scale 846, wherein after referring to its previous decisions, summarized the case law on the issue of limitation vis-a-vis condonation of delay in context of "sufficient cause". It has been so observed and held as under:
"[26] On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed Page 8 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the Court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."
(emphasis supplied) [12.4] It is also profitable to rely upon the decision of the Hon'ble Supreme Court of India in the case of case of Basawaraj and Another v. Special Land Acquisition Officer reported in 2013 (14) SCC 81, wherein it is held as under:-
"15. The law on the issue can be summarised to the effect that where a case has been presented in the Court beyond limitation, the applicant has to explain the Court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the Court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be Page 9 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
(emphasis supplied) [12.5] Even recently the Hon'ble Supreme Court in the case of Shivamma (DEAD) By Lrs Vs. Karnataka Housing Board & Ors. reported In 2025 INSC 1104, in clear terms held that where there is delay/laches on the part of the applicant in not prosecuting the legal remedy, in the absence of any sufficient cause made out by the applicant, the Court should not condone the delay while exercising its power under Section 5 of the Limitation Act, 1963. In the case of Shivamma (Supra), it held thus:-
"258. The length of the delay is a relevant matter which the Court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents, it appears that they want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, it cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the Court must not start with the merits of the main matter. The Court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the Court may bring into aid the merits of the matter for the purpose of condoning the delay."
(emphasis supplied) Page 10 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined [13] If the ratio of the aforesaid decisions of the Hon'ble Apex Court applied to the facts of the present case and so also considering the conduct of the applicants referred hereinabove, this Court would not like to condone the delay of 3757 days in filing an application to bring legal heirs/representative of original appellant No.1 & 2 on record, as prayed in the present application, as no sufficient cause made out by applicants. [13] Hence, the present application is bereft of any merit, requires to be rejected which is hereby rejected. No order as to cost.
ORDER IN CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 3 of 2022 In F/SECOND APPEAL NO. 42243 of 2022.
In view of the order passed in Civil Application (for Condonation of delay) No. 1 of 2023, the present application would not survive, thus, it is rejected. No order as to cost. ORDER IN CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2022 In F/SECOND APPEAL NO. 42243 of 2022.
[1] The present application is filed seeking condonation of delay of 361 days in filing the Second Appeal challenging the judgment and decree dated 10.10.2019 passed by the 14 th (Ad- hoc) Additional District Judge, Vadodara. Even calculation of such days of delay is not correct one as decree passed by the Page 11 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined Appellate Court was dated 10.10.2019, whereas Second Appeal was presented before this Court on 20.12.2022. Thus, delay is much more than disclosed in the application. The benefit of judgement/order dated 10.01.2022 passed by Hon'ble Supreme Court in Miscellaneous Application no. 21 & 29 of 2022 in Miscellaneous Application no. 665 of 2021 in SUO MOTU Writ Petition No. 3 OF 2020 , Cognizance for Extension of Limitation, In re, (covering period of COVID-19), was expired on completion of 90 days from 01.03.2022. Whereas, Second Appeal instituted much on 20.12.2022, thus, no benefit of said order would available to the applicants. No explanation worth name coming forth from applicants in regards to such huge, inordinate and gross delay in filing Second Appeal.
[2] Furthermore, after instituting Second Appeal and during pendency of this application, it is reported to this Court by applicants themselves that prior to filing of the Second Appeal, appellant No.1 and appellant No.2 died on 23.06.2010 and 28.04.2021 respectively. For any reasons, such vital facts not disclosed by applicants.
[3] So, to bring the legal heirs of aforesaid deceased appellants on record, applicants herein have preferred a separate Page 12 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined application being Civil Application No.3 of 2022, wherein there was a delay of around 3757 days in bringing the legal heirs of aforesaid deceased appellants. Thus, they have preferred a delay condonation application being Civil Application No.1 of 2023 in such application. Today, this Court, vide its order dated 04.11.2025, rejected the aforesaid delay application, thereby, legal heirs of deceased appellant Nos.1 and 2 are not allowed to be brought on record.
[4] It appears from the record that the present applicants herein are legal heirs of original plaintiff, thus, having common interest in subject matter as well as outcome of the suit/appeal. Even during course of submission, learned advocate Mr. Pathan appearing for applicants unable to dispute the aforesaid fact. When some of the plaintiffs died and their legal heirs are not allowed to be brought on record, the question of entertaining delay application / Second Appeal would not arise, inasmuch as, when there would be a common interest of the parties / plaintiffs and some of the plaintiffs died, whose legal heirs on record, then entire appeal stand abated as inconsistent decree cannot allow to operate.
[4.1] The said issue germen here, no longer remain res
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integra as squarely covered by Suresh Chandra (deceased) & ors V/s Parasram & Ors reported in 2025 IN SC 873 (Civil Appeal No. 9791 to 9793/2025, dated 18.07.2025) wherein after discussing the previous case laws on the issue, held thus:
"25. The underlying principle in the aforesaid decisions is that in respect of the subject matter of a suit or a proceeding arising therefrom, the court cannot pass inconsistent decrees. In consequence, if, due to non-substitution of LRs of a deceased party, the decree qua the deceased party has attained finality by abatement of proceedings qua him, the Court cannot proceed further if a reversal or modification of the decree under appeal would result in conflicting or inconsistent decrees. Therefore, in such a situation, the appeal would abate in its entirety."
(emphasis supplied) [5] Thus, in view of the aforesaid facts and position of law discussed above, without further deliberating on the issue of sufficient cause whether made out by the applicants in this application, according to my view, when legal heirs of deceased original appellant/applicant No.1 & 2 are not allow to be brought on record of the matter, entire appeal would stand abated, thus, question of condoning the delay in filing such appeal would not arise at all.
[6] In view of forgoing conclusion, the present application is rejected. Notice is discharged. No costs. ORDER IN F/SECOND APPEAL NO. 42243 of 2022.
In view of the aforesaid orders passed in respective Page 14 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025 NEUTRAL CITATION C/SA/42243/2022 ORDER DATED: 04/11/2025 undefined applications, registration of the Second Appeal along with Civil Application (for stay) stands refused. The Registry to do the needful.
(MAULIK J.SHELAT,J.) Lalji Desai Page 15 of 15 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu Nov 06 2025 Downloaded on : Mon Nov 10 20:48:09 IST 2025